Facts
- The Tribune Company published a Sunday newspaper advertisement for Duffy’s Pure Malt Whiskey.
- The advertisement’s headline described “Mrs. A. Schuman” as an experienced Chicago nurse praising the whiskey’s “invigorating” and “curative” properties.
- Beneath the headline, the advertisement displayed a portrait of Elizabeth Peck with the caption “Mrs. A. Schuman.”
- A testimonial beneath the portrait stated that the speaker had used the whiskey for years, both personally and when giving it to patients “in my capacity as nurse,” and recommended it as a tonic and stimulant; text at the end suggested a signature and address for “Mrs. A. Schuman.”
- Peck alleged she was not Mrs. Schuman, was not a nurse, and did not consume whiskey, and she sued for libel; she also pleaded a separate count for publication of her likeness without permission.
- The trial court excluded Peck’s testimony supporting her allegations and directed a verdict for the Tribune Company; the court of appeals affirmed.
Issues
- Whether publication of a person’s portrait with a testimonial printed under it can be treated as “of and concerning” the person depicted, even if another name appears with the testimonial.
- Whether attributing to a woman the habitual use and endorsement of whiskey (and administering it to patients as a nurse) is reasonably capable of a defamatory meaning sufficient to go to a jury.
- Whether a publisher avoids liability by showing the wrong portrait was used by mistake and without knowledge of the depicted person’s identity.
- Whether unauthorized publication of a person’s likeness is independently actionable as a tort per se.
Decision
- The Supreme Court reversed and remanded.
- The Court held the publication was “of and concerning” Peck because placing her portrait with the testimonial conveyed that she was the nurse and made the statements, notwithstanding the different name printed.
- The Court held a jury could reasonably find the advertisement defamatory because it could harm Peck’s standing with an important and respectable segment of the community.
- The Court held mistake and lack of knowledge in using the wrong portrait did not excuse liability for a false, unprivileged, and harmful attribution.
- The Court declined to decide whether unauthorized publication of a person’s likeness is a tort per se.
Legal Principles
- A portrait published in connection with a testimonial or statement may be understood as attributing the statement to the person depicted, satisfying the “of and concerning” requirement even if another name is attached.
- An unprivileged falsehood is actionable if it tends to injure the plaintiff in the estimation of an important and respectable part of the community; universal condemnation is not required.
- A publisher of manifestly harmful statements acts at its peril; misidentification by mistake, without knowledge of the subject’s identity, is not a defense when the attribution is false as to the person shown.
- When a publication is reasonably capable of a defamatory meaning and reputational harm, the plaintiff is entitled to present evidence and have the case submitted to the jury.
Conclusion
The Court held that using Peck’s portrait to present a whiskey endorsement as if it were hers could be found defamatory and was attributable to her despite a different printed name; alleged mistake did not bar liability, and the directed verdict was improper.